Nationality and Borders Bill

Diana Johnson Excerpts

Report stage & 3rd reading
Wednesday 8th December 2021 Commons Chamber

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

New clause 6—Exemption for child victims of modern slavery, exploitation or trafficking—

‘(1) The Secretary of State may not serve a slavery or trafficking information notice on a person in respect of an incident or incidents which occurred when the person was aged under 18 years.

(2) Section 61 of this Act does not apply in cases where either of the positive reasonable grounds decisions related to an incident or incidents which occurred when the person was aged under 18 years.

(3) Section 62 of this Act does not apply in cases where the positive reasonable grounds decision related to an incident or incidents which occurred when the person was aged under 18 years.

(4) Sections 64(3) and 64(6) of this Act do not apply in cases where the positive conclusive grounds decision related to an incident or incidents which occurred when the person was aged under 18 years.’

This new clause would exempt victims of modern slavery, exploitation or trafficking from many of the provisions in Part 5 of the Bill if they were under 18 when they became a victim.

New clause 30—Victim Navigators—

‘(1) The Secretary of State must, within six months of the date of Royal Assent to this Act, make provisions for each police force in England and Wales to have one or more Independent Victim Navigators to liaise between the relevant police force and potential victims of slavery or human trafficking and to assist in the procurement of specialist advice for both the police force and the potential victim.

(2) Regulations under this section—

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.’

This new clause seeks to introduce provisions for Independent Victim Navigators to be in operation on a national level, acting as a liaison between the police and potential victim of slavery or human trafficking in accessing the appropriate support.

New clause 39—Identified potential victims etc: disqualification from protection—

‘(1) This section applies to the construction and application of Article 13 of the Trafficking Convention.

(2) The competent authority may determine that it is not bound to observe the minimum recovery period under section 60(2) of this Act in respect of a person in relation to whom a positive reasonable grounds decision has been made, if the authority is satisfied that it is prevented from doing so—

(a) as a result of an immediate, genuine, present and serious threat to public order; or

(b) the person is claiming to be a victim of modern slavery improperly.

(3) Any determination made under subsection (2) must only be made—

(a) in exceptional circumstances;

(b) where necessary and proportionate to the threat posed; and

(c) following an assessment of all the circumstances of the case.

(4) A determination made under subsection (2) must not be made where it would breach—

(a) a person’s Human Rights Convention rights;

(b) the United Kingdom’s obligations under the Trafficking Convention; or

(c) the United Kingdom’s obligations under the Refugee Convention.

(5) For the purposes of a determination under subsection 2(b), victim status is being claimed improperly if the person knowingly and dishonestly makes a false statement without good reason, and intends by making the false statement to make a gain for themselves.

(6) A good reason for making a false statement includes, but is not limited to, circumstances where—

(a) the false statement is attributable to the person being or having been a victim of modern slavery; or

(b) where any means of trafficking were used to compel the person into making a false statement.

(7) This section does not apply where the person is under 18.

(8) Nothing in this section shall affect the application of section 60(3) of this Act.’

This new clause is an alternative to clause 62. It ensures that the power currently provided for in clause 62 is exercised in line with the UK’s obligations under Article 13 of the Trafficking Convention. This amendment also protects child victims of modern slavery from disqualification from protection.

New clause 43—Civil legal aid under section 9 of LASPO: add-on services in relation to the national referral mechanism—

‘(1) Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (civil legal services qualifying for legal aid) is amended as follows.

(2) After paragraph 32A (Victims of slavery, servitude or forced or compulsory labour) insert—

“Pre-National Referral Mechanism advice

32B (1) Civil legal services provided to an individual in relation to referral into the national referral mechanism and connected immigration advice.

General exclusions

(3) Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule.

Specific exclusions

(4) The civil legal services described in sub-paragraph (1) do not include—

(a) advocacy, or

(b) attendance at an interview conducted by the competent authority under the national referral mechanism for the purposes of a reasonable grounds decision or a conclusive grounds decision.

(5) In regulation 5(1) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (S.I. 2013/480) (exceptions from requirement to make a determination in respect of an individual’s financial resources), after paragraph (l), insert—

“(m) civil legal services described in paragraph 32B of Part 1 of Schedule 1 to the Act (Civil legal services provided to an individual in relation to referral into the national referral mechanism).”’

New clause 47—Support and leave to remain for confirmed victims of slavery or human trafficking—

‘This section applies if a positive conclusive grounds decision is made in respect of a person.

(1) This subsection applies if the person has received support under section 50A of the Modern Slavery Act 2015—

(a) assistance and support must be provided for at least 12 months beginning on the day on which support provided under section 50A ends,

(b) where assistance and support is provided to a person under this subsection the Secretary of State must consider whether it is necessary for the victim’s physical, psychological and social recovery or to prevent re-trafficking to provide assistance and support after the end of the period in subsection (2)(a) for as long as they think appropriate,

(c) a decision whether to provide assistance and support in accordance with subsection (2)(b) must be made at least four weeks before the end of the assistance and support provided under subsection (2)(a),

(d) a reference in this subsection to assistance and support has the same meaning as in section 50A(7) of the Modern Slavery Act 2015.

(2) This subsection applies if the person is not a British citizen—

(a) the Secretary of State must give the person leave to remain in the United Kingdom if subsection (2) or (4) or (5) applies,

(b) leave to remain provided under this subsection shall be provided from the day on which the positive conclusive grounds decision is communicated to a person for either—

(i) the amount of time support and assistance will be provided under either subsection (2) or one of the measures listed in subsection (4), or

(ii) at least 12 months if the person meets one or more of the criteria in subsection (5).

(3) This subsection applies if the person receives support and assistance under one of the following—

(a) section 18(9) of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)),

(b) section 9(3)(c) of the Human Trafficking and Exploitation (Scotland) Act 2015 (asp 12), or

(c) regulation 3(4)(c) of the Human Trafficking and Exploitation (Scotland) Act 2015 (Support for Victims) Regulations 2018 (S.S.I 2018/90).

(4) This subsection applies if the person meets one or more of the following criteria—

(a) leave is necessary due to the person’s circumstances, including but not restricted to—

(i) the needs of that person for safety and protection from harm including protection from re-trafficking,

(ii) the needs of that person for medical and psychological treatment,

(b) the person is participating as a witness in criminal proceedings,

(c) the person is bringing any civil proceedings including pursuing compensation.

(5) Where the person is receiving assistance from a support worker the recommendations of the support worker must be considered in assessing that person’s circumstances under subsection (5)(a).

(6) The Secretary of State must provide for persons granted leave to remain in accordance with this section to have recourse to public funds for the duration of the period of leave.

(7) The Secretary of State must allow a grant of leave to remain under subsection (3) to be extended subject to the requirements of subsection (9).

(8) In determining whether to extend a grant of leave to remain under subsection (8), and the period of time for which such extended leave should be provided, the person’s individual circumstances must be considered, and whether that person—

(a) is receiving on-going support and assistance under the measures set out in either subsection (2) or subsection (4), or

(b) meets one or more of the criteria in subsection (5).

(9) If the Secretary of State is satisfied that the person is a threat to public order—

(a) the Secretary of State is not required to give the person leave under this section, and

(b) if such leave has already been given to the person, it may be revoked.

(10) In this section, if the person is aged below 18 years of age, the best interests of the child must be taken into consideration in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009.

(11) In this section—

“positive conclusive grounds decision” means a decision made by a competent authority that a person is a victim of slavery or human trafficking;

“threat to public order” has the same meaning as subsections (3) to (7) of section 62.

(12) This section is to be treated for the purposes of section 3 of the Immigration Act 1971 as if it were provision made by that Act.’

This new clause would provide new statutory support for victims in England and Wales after a conclusive grounds decisions. It would provide leave to remain for all victims with a positive conclusive grounds decision for at least 12 months to receive support, assist police with their enquiries or seek compensation.

Amendment 127, page 57, line 3 leave out clause 57.

Amendment 128, page 57, line 25 leave out clause 58.

Amendment 5, in clause 58, page 57, line 41, at end insert—

‘(5) The provision of relevant status information identifying a person as a likely victim of human trafficking for sexual services shall constitute a “good reason” for the purposes of this section.’

This amendment would mean that the credibility of victims of human trafficking for sexual services would not be called into question by reason of the late provision of information relating to that fact.

Amendment 6, in clause 58, page 57, line 41, at end insert—

‘(5) Subsection (2) does not apply where the person is a victim of trafficking for the purposes of forced prostitution.

(6) For the purposes of subsection (5) the person may be considered a victim of trafficking for the purposes of forced prostitution if there is evidence that the person—

(a) has been transported from one location to another on a daily basis;

(b) bears signs of physical abuse including but not limited to—

(i) branding;

(ii) bruising;

(iii) scarring;

(iv) burns; or

(v) tattoos indicating gang membership;

(c) lacks access to their own earnings, such as by having no bank account in their own name;

(d) has limited to no English language skills, or only such language skills as pertain to sexualised acts;

(e) lives or stays at the same address as person(s) meeting the criteria in paragraphs (a) to (d);

(f) sleeps in the premises in which they work.’

Under this amendment, late provision of relevant status information would not be taken as damaging the credibility of the person providing the information if that person were a victim of trafficking for the purposes of forced prostitution.

Amendment 7, in clause 59, page 58, line 5, at end insert—

‘(za) at the end of paragraph (a) insert—

“(aa) the sorts of things which indicate that a person may be a victim of human trafficking for sexual services;”.’

This amendment would require the Secretary of State to issue specific guidance on the sorts of things which indicate that a person may be a victim of human trafficking for sexual services.

Government amendments 64 to 69.

Amendment 3, page 59, line 39, leave out clause 62.

This amendment would remove clause 62, which excludes potential modern slavery victims from protection in certain circumstances.

Government amendments 70 to 75.

Amendment 149, page 62, line 18, leave out clause 64.

This amendment is consequential on NC47.

Government amendments 78, 76, 77 and 79 to 83.

Amendment 130, page 63, line 26, leave out clause 65.

This amendment is consequential on NC43.

Amendment 131, page 66, line 1, leave out clause 66.

This amendment is contingent on NC43, Clause 66 would no longer be required if NC43 is agreed to.

Amendment 148, page 66, line 33, leave out clause 67.

Government amendment 84.

Amendment 129, in clause 81, page 79, line 15, at end insert—

‘(6) Part 4 (age assessments) and part 5 (modern slavery) only extend to Scotland to the extent that a motion has been approved by the Scottish Parliament, bringing them into force in Scotland.’

Under this amendment, Parts 4 and 5 of the Bill would not enter into force in Scotland until the Scottish Parliament had given its consent.

Government amendments 85 to 90.

Amendment 16, in clause 82, page 80, line 3, at end insert—

‘(5) Sections [Time limit on immigration detention], [Initial detention: criteria and duration] and [Bail hearings] come into force six months after the day on which this Act is passed.’

This amendment would bring NC15-NC17 into force six months after the day on which the Bill is passed.

[Dame Diana Johnson]

I rise to speak to new clause 3, which would put into law a specific offence for trafficking for the purposes of sexual exploitation. We know that serious organised crime networks are deeply involved in this trade in human misery. I thank Kat Banyard at UK Feminista and Tom Farr at CEASE—the Centre to End All Sexual Exploitation—UK, who have helped to draft new clause 3, and the Humber Modern Slavery Partnership at the Wilberforce Institute in Hull for all its help.

Although the Modern Slavery Act 2015 covers exploitation broadly, the catastrophically high number of women and girls trafficked into the UK for the sex industry means that it merits a specific offence. The latest figures from the national referral mechanism show that 60% of women and girls who were identified as potential victims in the past year were trafficked for purposes including sexual exploitation. In 2020, 94 women and 624 girls were trafficked and sexually exploited. These women need specific and targeted protection.

New clause 3 would ensure that the link between human trafficking and sexual exploitation is acknowledged. It would aid efforts to combat the scourge of human trafficking and broader violence against women and girls by providing a framework that would ensure that the authorities respond to individuals who may have been previously viewed as criminals as though they are, in fact, victims of sexual exploitation.

I also want to speak to amendments 5 to 7, which focus on stopping late disclosure affecting credibility and providing guidance to help the relevant authorities to identify victims. Andrew Smith of the Humber Modern Slavery Partnership, an experienced practitioner, told me:

“We know there are various reasons why we might see late disclosure by victims of sexual exploitation and trafficking. Victims may not identify as victims first and foremost, it can be only when a person is removed from the exploitative environment that they understand they were in fact being abused and exploited.”

And yet, the Bill proposes a time limit on disclosure.

The Modern Slavery Policy Unit, co-led by Justice and Care UK and the Centre for Social Justice, stated:

“Presuming late disclosure of modern slavery damages credibility will create barriers to effective identification and engagement with victims.”

The Bill, as it stands, will make identifying and assisting victims of human trafficking more difficult.

Amendment 5 would stop late disclosure affecting the credibility of a claim of being trafficked for the purpose of sexual exploitation. The Home Office’s modern slavery statutory guidance states:

“Victims’ early accounts may be affected by the impact of trauma. This can result in delayed disclosure, difficulty recalling facts, or symptoms of post-traumatic stress disorder. Victims may also be reluctant to self-identify for a number of other reasons that can make understanding their experiences challenging.”

This amendment acknowledges Home Office guidance by ensuring that late disclosure does not damage credibility.

Amendment 6 sets out how a person who makes a late disclosure might be better identified by any relevant authority.

[Mrs Theresa May (Maidenhead) (Con)]

I am very interested in what the right hon. Lady is saying. If we are to stop modern slavery, we must ensure that we catch the perpetrators, which requires victims to be able to come forward with evidence. She is outlining certain elements of the Bill that she fears will restrict victims’ ability to come forward, and I am concerned that the public order disqualification threshold and the time period on slavery and trafficking information notices will also have that effect. Does she share my concerns about those aspects and hope that the Minister will address them specifically today?

[Dame Diana Johnson]

I thank the right hon. Lady for that intervention and pay tribute to her for, as Home Secretary, bringing in the Modern Slavery Act. I sat on the Bill Committee for that Act and I remember well the debates that we had. She should be very proud of her work on this issue, and I absolutely agree with her comments on what the Bill will lead to.

To return to amendment 6, I want to make it clear that putting these guiding factors in the Bill would provide a deeper understanding for the authorities of what they should be aware of and how to identify victims.

Amendment 7 would require the Secretary of State to issue guidance on the specific factors that may indicate that somebody is a victim of human trafficking for the purposes of sexual exploitation. That would provide a framework for the relevant authorities to refer to when trying to discern the type of exploitation that has taken place.

The Under-Secretary of State for the Home Department, the hon. Member for Corby (Tom Pursglove), argued against these amendments in the Bill Committee, stating that the Government did not want to create a “two-tiered system” based on the exploitation that a victim had faced. I think that is simply wrong. Acknowledging the distinct features of trafficking for the purposes of sexual exploitation, as opposed to, for example, forced labour, would improve the authorities’ response and the ability to prosecute and find the perpetrators. Recognising and identifying difference would not create a hierarchy; rather, it would make the system more effective and accurate. The Minister also stated that delineating between trafficking for sexual exploitation and trafficking for other purposes would motivate individuals to put forward falsified referrals. However, all the evidence shows that victims of trafficking for sexual exploitation need more encouragement to come forward, not less.

Finally, I want to speak in support of new clause 47 and the supporting amendment 149, which was tabled by the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith). He has worked assiduously on protections for victims of human trafficking and modern slavery for many years. The new clause would provide all victims who receive a conclusive grounds decision with 12 months’ leave to remain to either recover, claim compensation or assist the police. The Government need to do more to protect people who have suffered from these horrendous crimes.

[Sir Iain Duncan Smith (Chingford and Woodford Green) (Con)]

I am grateful to be called so early in the debate. Mr Speaker. I will speak to my new clause 47, which has been signed by Members on both sides of the House. The aims of the new clause, which the right hon. Member for Kingston upon Hull North (Dame Diana Johnson) kindly referred to, are very simple. It is not a soft option, but a decent and reasonable one that does two things.

First, it deals with the issue of giving people who have gone through the national referral mechanism, who are therefore rightly in the system, longer to be able to settle and to be properly helped and supported. That is a humanitarian position, having already decided that such people have suffered as a result of modern-day slavery. That was the purpose of the Modern Slavery Act, which was brought in by my right hon. Friend the Member for Maidenhead (Mrs May), and this proposal will make that even better as we go forward and learn from it.

The second aspect is very important. The police keep telling us that, if they had more time to help those people to give testimony, we would get many more prosecutions and we would, ironically, shut down more of the ghastly criminal channels that are bringing these people in. This is about being strong in both prosecution and humanitarian terms, and that is the purpose of the new clause. I remind everybody that when the Centre for Social Justice wrote the first big paper about modern-day slavery, my right hon. Friend—we were both in Government at the time—was moved and decent enough to be able to push this point in government and put the legislation through, which meant that we were the first country in the world to acknowledge modern-day slavery and legislate for it. We should be proud of that. It is one of those things on which the British Parliament historically will be spotted for having led the way worldwide. Other Parliaments have followed suit—not all of them, but many have—with their own versions of that legislation.

We should be proud that a Parliament can work to do right by people who have too often been abused. I also remind those here today, and others who may or may not be watching, that the National Crime Agency figures now show that between 6,000 and 8,000 modern slavery offenders are in the UK, but there were just 331 prosecutions in 2020 under the Modern Slavery Act and only 49 convictions. Does that not tell us a story? It tells us that, good as we think we are, we are not winning this battle, and the police know it.